Keoa v Keoa [2017] PGNC 263; N6941 (12 October 2017)

N6941

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 59 OF 2015

MARY PELEH KEOA
Applicant

V

DILESSY KEOA
Respondent

Waigani : Cannings J
2015, 3, 4, 30 September & 19 December,
2017, 12 October

HUMAN RIGHTS – enforcement – human rights in context of relationship of intimacy and trust – Constitution, Section 36 (freedom from inhuman treatment).

The applicant sought compensation for alleged breaches of human rights committed against her by her former de facto partner, the respondent, by assaulting, detaining or otherwise intimidating her on 11 occasions over a four-year period. The respondent admitted to some of the alleged assaults but claimed that on each occasion his actions were justified as he was acting under extreme provocation and that on none of those occasions did he infringe the human rights of the applicant. This was the judgment of the Court following a trial in which each party gave evidence.

Held:

(1) Eight of the 11 allegations of assault and/or intimidation were sustained.

(2) On each occasion the respondent assaulted or intimidated the applicant, he committed acts of unjustified physical and/or emotional violence and thereby breached the human rights of the applicant, in particular the right of freedom from cruel treatment under Section 36(1) of the Constitution.

(3) The applicant was awarded reasonable damages in the sum of K8,000.00 and exemplary damages of K2,000.00, being a total award of damages of K10,000.00.

Cases cited:

None.

APPLICATION

This was an application for enforcement of human rights.

Counsel :

V Amoko, for the Applicant
J Holingu, for the Respondent

12^th October, 2017

1. CANNINGS J: Mary Peleh Keoa, the applicant, seeks compensation for alleged breaches of human rights committed against her by her former de facto partner, Dilessy Keoa, the respondent, by assaulting, detaining or otherwise intimidating her on 11 occasions in the period from December 2011 to November 2015. The respondent admits to some of the alleged assaults but claims that on each occasion his actions were justified as he was acting under extreme provocation and that on none of those occasions did he infringe the human rights of the applicant.
   
2. The parties entered their relationship in 2010. The applicant is from Manus. The respondent is from the Okapa District of Eastern Highlands. The applicant had two sons from a previous relationship. The respondent had one son from a previous relationship. From their marriage they had one son. It is clear that it became a stormy relationship, characterised by frequent quarrelling and allegations of infidelity on both sides. The relationship came to an end in 2014. There are three issues:
   
   1. Has the applicant proven the factual allegations?
   2. Has the applicant proven any human rights breaches?
   3. What orders should the court make?
      
1. HAS THE APPLICANT PROVEN THE FACTUAL ALLEGATIONS?
   

3. Each of the parties has given sworn testimony by affidavit. There is no other evidence. I have considered the evidence and made a determination in respect of each incident whether the applicant has proven the factual allegation according to the civil standard of proof, on the balance of probabilities. The following table describes each allegation and sets out the respondent’s response and provides my determination of each allegation, whether it is sustained or not.

DETERMINATION OF FACTUAL ALLEGATIONS

No	Date	Allegation	Response	Determination
	7 Dec 11	Respondent (R) assaulted applicant (A) at his office at Gordons, NCD, after a church meeting at Gerehu.	Admits assaulting A – she refused unreasonably to accept his explanations as to why he had been driving speedily – she yelled and shouted at him unreasonably.	Allegation sustained due to R’s admission.
	13 May 12	R assaulted A in their unit – she sustained head and facial injuries and was rendered unconscious.	Admits assaulting A – she ran away and lived at Two Mile and was having an affair with a Hagen man.	Allegation sustained due to R’s admission.
	14 Oct 12	R assaulted A at their new unit at Morata inflicting head injuries requiring treatment at Gerehu Clinic.	Admits assaulting A – she had been out partying the night before and came home drunk and disturbed R as he was trying to sleep.	Allegation sustained due to R’s admission.
	Jun 13	R, driving under the influence of alcohol, drove his vehicle in pursuit of A who was driving her own vehicle – she was put in a dangerous situation and was almost shot by Police.	No response.	Allegation sustained – sworn evidence – details sufficient.
	20 Jul 13	R assaulted A, punching and kicking her, then locked her in the boot of his vehicle for a short period.	Admits assaulting A – he found packets of condoms in her room – this was after catching her with a young man one night at Morata 2.	Allegation sustained due to R’s admission.
	Nov 13	R assaulted A at Goroka Lutheran Guest House while under the influence of alcohol and in the presence of his first-born son.	Denies the allegation.	Allegation not sustained – lack of corroboration – particulars vague.
	9 Jan 14	R assaulted A while she was pregnant, punching her on the face.	No response.	Allegation sustained – uncontradicted sworn evidence – details sufficient.
	Jan 14	R assaulted A again, after the incident of 9/1/14, threatening to kill her if she left him.	No response.	Allegation not sustained – lack of corroboration – particulars vague.
	Feb 14	R threatened to shoot A on her legs.	No response.	Allegation not sustained – lack of corroboration – particulars vague.
	18 Nov 14	R rammed the vehicle he was driving into A’s vehicle while she was driving it.	Admits the car chase – A was bothering him with text messages while he was out with friends – he went out to look for her but she refused to stop – he had purchased the vehicle she was driving .	Allegation sustained due to R’s admission.
	8 Nov 15	R assaulted A in a moving vehicle, on the Magi Highway.	No response.	Allegation sustained – uncontradicted sworn evidence – details sufficient.

2. HAS THE APPLICANT PROVEN ANY HUMAN RIGHTS BREACHES?
   
4. The answer is yes. Whenever two adult persons enter into an intimate, consensual relationship, whether it has the status of a statutory marriage, a customary marriage or a de facto relationship, a relationship of trust is created. It is the expectation – and the enforceable human right – of each party to the relationship to be protected against actions of the other party that amount to:
   
   • torture (whether physical or mental); or
   • treatment or punishment that is cruel or otherwise inhuman or inconsistent with respect for the inherent dignity of the human person.
     
5. This expectation and right arises from Section 36(1) (freedom from inhuman treatment) of the Constitution, which states:
   

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

6. The applicant was in a relationship of intimacy and trust with the respondent for four years. She had the right to be protected (by the law) against, and to be free from, cruel treatment for the duration of that relationship.
   
7. Whenever one party to the relationship commits an act of physical violence against the other party, then, unless the act is justified in terms of a defence that would be available under the criminal law (such as self-defence), such an act will amount to “cruel” treatment. In a society such as Papua New Guinea, where it is widely recognised that domestic and gender-based violence is a major problem, this sort of violence must be recognised as a human rights issue.
   
8. I have considered the respondent’s explanations for the assaults and other violent incidents involving the applicant. He appears on a number of occasions to have been provoked by the actions of the applicant. But an explanation is not the same thing as a justification. I find in the evidence no lawful justification or excuse on any of the eight occasions for the assaults and intimidation that occurred.
   
9. I find that on each of those eight occasions the respondent breached the human right of the applicant under Section 36(1) of the Constitution to be free from cruel treatment. Eight human rights breaches have been proven.
   
10. Other human rights breaches alleged by the applicant to have been committed under other sections of the Constitution, have not been proven.
    

3 WHAT ORDERS SHOULD THE COURT MAKE?

11. I invoke Section 58(2) (compensation) of the Constitution, which states:
    

A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

12. The applicant is a person whose rights and freedoms declared and protected by Division III.3 of the Constitution (basic rights) have been infringed. She is entitled to an award of reasonable damages against the person who infringed her rights and freedoms: the respondent. This is a case in which it is appropriate to also award exemplary damages. I award reasonable damages of K1,000.00 for each of the eight infringements. I award the sum of K2,000.00 exemplary damages. It is not appropriate to award interest. In addition the interim order of 19 December 2015, restraining the parties from assaulting, harassing or intimidating each other, will be made permanent.
    

ORDER

(1) It is declared that:

(a) the applicant has established a cause of action in breach of human rights against the respondent, constituted by the respondent submitting the applicant to cruel treatment, contrary to Section 36(1) of the Constitution, on eight occasions, in the period from December 2011 to November 2015; and

(b) the applicant has failed to establish a cause of action in respect of three other alleged incidents in the period from December 2011 to November 2015.

(2) The respondent shall, under Section 58(2) of the Constitution, pay to the applicant in respect of the breaches of human rights referred to in order (1)(a), reasonable damages in the sum of K8,000.00 and exemplary damages of K2,000.00, being a total award of damages of K10,000.00, which total sum shall be paid to the applicant by 13 November 2017.

(3) The respondent is not liable to pay any interest on that total sum and the parties shall bear their own costs of the proceedings.

(4) Both the applicant and the respondent are permanently restrained from assaulting, harassing and intimidating each other at any place and at any time.

(5) The application for enforcement of human rights is thereby determined and the file is closed.

Judgment accordingly.

____________________________________________________________

Public Solicitor : Lawyer for the Applicant
Holingu Lawyers : Lawyers for the Respondent